Copyright Policy

Fair Use

Fair use limits the exclusive rights of the copyright holder, and is especially helpful in academic settings. Specifically, the Copyright Act of 1976 refers to uses such as “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.”

However, “fair use” is described in terms of guidelines and not with specific rules and is therefore open for interpretation. Section 107 of the Copyright Act of 1976 provides the following four principles.

All four of these factors must be considered and weighed for each situation, although courts have historically put the most weight on the first and fourth factors, especially the fourth.

Careful consideration of the four factors is absolutely necessary, and you will want to keep a record of your decision making in case you are challenged. Columbia University Libraries' Fair Use Checklist can be helpful for this record keeping.

(exposition based on U.S. Copyright Office More Information on Fair Use, 2017 and Crews, K.D. Copyright Law for Librarians and Educators, Chicago: American Library Association, 2006):

1. The purpose and character of the use
   In general, courts look more favorably on educational and non-profit use, but that is not a guarantee that all educational use will be considered fair use. Courts will balance that factor against the others listed below. Transformative use is looked upon very favorably. For more information and a new twist on interpreting "transformative," see the Association of Research Library's Code of Best Practices in Fair Use for Software Preservation. 
   
   One other favorable interpretation to this factor is how spontaneous the use was, meaning if the decision to use the work comes in close time proximity to the moment of use, the use is more likely to fall into the fair use exception. Beware of this exception. It is much tougher to defend since permissions are easier and easier to acquire. (see U.S. Copyright Office Circular 21 - Reproduction of Copyrighted Works by Educators and Librarians)
2. The nature of the copyrighted work
   Fair use generally applies to nonfiction works more readily than fiction and works of an artistic nature. However, some argue that introducing fictional/artistic works into an educational realm, transforms the original purpose and context, making them more likely to be covered by the fair use exception. For more information, see the Association of Research Library's Code of Best Practices in Fair Use. 
   
   One definite exception to the favorability of nonfiction works are consumable items, such as workbooks and study guides, that have been created as single-use items. These items will not be covered by the fair use limitation to copyright.
   
   Out of print works offer an area of some confusion in that it would seem fair use to make copies of a work that is otherwise unavailable. Nevertheless courts have sided with copyright holders on this topic and so it is wise to seek permission even for out of print works.
    
3. The amount and substantiality of the portion used
   Unfortunately no exact measures exist in the copyright laws for how much of a work may be reproduced. However, the U.S. Copyright Office have provided some guidelines in Circular 21 - Reproduction of Copyrighted Works by Educators and Librarians (search the PDF for the word "brevity" to find the location of the guidelines). 
   
   In general, articles and single chapters fall within the fair use guidelines
   
   That said, the issue is much more complicated than simply number of words of percentage of the whole. There have been arguments made that reproducing the “heart” of the work, no matter how small constitutes a breach of fair use. It is a subjective matter, but one you need to consider.
    
4. The effect of the use upon the potential market
   If the reproduction directly replaces a potential sale (e.g. photocopying a chapter so that students do not need to purchase the entire book), then the situation does not fall within fair use.
   
   The idea of potential sale, however, can be more broadly interpreted to also include a situation that would limit the copyright holder’s opportunity to collect fees for copyright permissions and such.

Date Limitations

• For works published on or after January 1, 1978: Protection extends from the moment of creation until 70 years after the last surviving author’s death. For items without specific authors (for hire or anonymous works) copyright extends 95 years after publication or 120 years after creation, whichever is shorter.
• For works published before January 1, 1978: Originally these works were only eligible for protection for 25 years. However subsequent legislation has allowed for renewals that may amount to a total of 95 years. These works must contain an explicit statement of copyright.

Public Domain

Items in the public domain are not eligible for copyright protection and may be reproduced without restriction. These include:

• Ideas and artifacts
• Words, names, slogans (although these may fall under trademark protection)
• United States federal government publications (unless they contain copyrighted material)
• Works dated 1922 or earlier
• Works first published before January 1, 1978 that do not include a copyright statement

Implied Licenses for Internet Materials

Contrary to what some believe, copyright does still apply to materials on the Internet. Just because an author posts something on a Web site does not mean that the material is automatically in the public domain.

That said, because of the nature of the Internet, there is something of an implied license for these materials. When an author makes something available on the open Internet (as opposed to proprietary Internet, those sections specifically licensed for sale and protected behind passwords such as most library subscriptions), he or she should expect that people will read, download, print-out, forward, and use that material as the basis for other works to a certain degree. Therefore there is an implied license to conduct these sorts of activities.

As with many other areas of copyright, the boundaries for these implied licenses are not entirely clear, and the word “reasonable” tends to come up as the measuring stick for gauging infringement.

It is always good to keep in mind that in copyright cases the courts seem to look most closely at whether the use of copyrighted materials has diminished the market for those materials. Is the copyright holder losing money due to the actions taken by the user of the materials? This is especially important when talking about peer-to-peer file sharing.